New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2005-030-514, Claim No. 109220, Motion Nos. M-68624, CM-69495


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 18, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read and considered on Claimant's motion [M-68624] to strike defenses and Defendant's cross-motion [CM-69495] for summary judgment:
1,2 Notice of Motion; Affidavit in Support of Motion Striking Defendant's Defense by Jose Rivera, Claimant, and attachments

3,4 Notice of Cross-Motion; Affirmation by Dewey Lee, Assistant Attorney General
and attachments

5,6 Notice of Opposition to Defendant's Cross-Motion; Affidavit by Jose Rivera, Claimant, and attachments

7,8 Filed Papers: Claim, Answer

After carefully considering the papers submitted and the applicable law the motions are disposed of as follows:

Jose Rivera, the Claimant herein, alleges in Claim Number 109220 that Defendant's agents failed to provide him with adequate and timely medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Downstate Correctional Facility (hereafter Downstate). Specifically, he alleges that commencing in June 2003 he experienced pain in the groin area and consulted medical personnel, and a swelling in his right testicle was identified. From July 2003 through most of October 2003, he indicates that he consulted medical personnel, was referred to a urologist, was prescribed pain medication and ultimately underwent surgery on or about October 22, 2003 at Mount Vernon Hospital. Thereafter, it is alleged that post-operative care was undertaken by State medical personnel, who determined initially that his wound was healing in follow-up examinations, and that all was as would be expected after the "Hydrocelectomy" he had undergone.

Claimant states that he suffered ". . . persistent pain and swelling in his right scrotum", and consulted medical personnel who referred him to a urologist. [Claim, ¶13]. After various visits to medical personnel throughout November and December 2003 and January 2004, Claimant was again referred for surgery. Claimant asserts that when the surgeon examined Claimant on January 20, 2004, he "apologiz[ed] for having made a mistake the first time." [ibid. ¶22]. The surgery was performed on February 12, 2004.

Claimant alleges that because of the medical treatment he received, he suffers from erectile dysfunction, as well as mental pain and anguish. He asserts that between October 23, 2003 and February 12, 2004, there was inordinate delay in treatment "in rendering a solution to the problem and the relative incompetence in [follow-up] examinations that should have revealed the extensive problems, especially where tenseness, inflammation and swelling showed a possible hematoma buildup in the same area where the original surgery took place . . . " [ibid. ¶29].

A Notice of Intention, alleging a date of accrual of December 17, 2003, was served on the Office of the Attorney General on February 26, 2004, but was rejected and returned pursuant to Civil Practice Law and Rules §3022. [ibid. ¶31]. A second unverified Notice of Intention to file a Claim was returned on or about March 15, 2004. [ibid. ¶ 33]. According to the Affidavit of Service filed with it, the Claim itself was served upon the Office of the Attorney General on or about April 8, 2004 by certified mail, return receipt requested.

In its Verified Answer, Defendant asserts two defenses including that the Court lacks personal and subject matter jurisdiction because of Claimant's failure to timely serve the claim within ninety (90) days of its accrual. The Claim was received by the Office of the Attorney General on April 12, 2004.
Defendant's Cross-Motion for Summary Judgment
It is "fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons," including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied, 76 NY2d 701 (1990).

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A Claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. The " ‘claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries' (Parker v State of New York, 242 AD2d 785, 786)." Auger v State of New York, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained. Hale v State of New York, 53 AD2d 1025 (4th Dept 1976), lv denied, 40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

Attached to Defendant's papers is a sworn affirmation by Dr. Alexis F. Lang, a Regional Medical Director for DOCS. She reviewed Claimant's medical records, and renders her opinion as to the medical treatment he was given, including assessments of how personnel chose to render treatment, and the correlation between the symptoms presented and the treatment given. She concludes that there is no clinical support for Claimant's allegations of erectile dysfunction related to the medical treatment he received, or for his complaints of excruciating pain. Dr. Lang opines, that claimant's first complaints of testicular pain on June 23, 2003, resulted in appropriate referrals to a urologist, and for sonograms. Once the diagnostic evaluations were made, Claimant was recommended for surgery, which took place on October 23, 2003. She writes that after surgery, swelling of the scrotum may be present for up to a month, and that hematoma is a known complication. When it was identified, additional surgical intervention followed.

Finally, she notes that erectile dysfunction is "not a typical complication post this procedure. There are a variety of reasons for a 46 year old male who has been in prison for over 2 years to have [erectile dysfunction]. Experts believe that psychological factors such as stress, anxiety, guilt, depression low self-esteem, and fear of sexual failure cause 10 - 20 percent of ED cases." [Affirmation of Dr. Alexis F. Lang, ¶27].

In opposition to Defendant's cross-motion, the Claimant has filed an Affidavit that essentially disagrees with the conclusions Dr. Lang draws from the medical records, and disputes Dr. Lang's reliance on various medical treatises or articles referred to in her statement. He has appended records from Mount Vernon Hospital covering the period of his two (2) surgeries, to negate Dr. Lang's conclusions from the clinical record that he was not suffering the degree of pain he stated he was suffering.

While it is not the best practice, the use of an attorney's affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[1] The Court is satisfied as an initial matter that the cross-motion is adequately supported.

More importantly, since the Defendant has submitted a sworn statement - albeit in Memorandum form - of Dr. Alexis Lang indicating her review of Claimant's medical records and professional opinion regarding the claims of malpractice, and establishing Defendant's entitlement to judgment as a matter of law, the burden shift to Claimant to produce evidentiary proof in admissible form establishing the existence of material questions of fact. Alvarez v Prospect Hospital, supra at 326-327. Significantly, Claimant has not submitted his own expert's affidavit to refute the opinion that State medical personnel did not breach any duty of care owed to Claimant, and that in any event any omissions were not the proximate cause of his alleged injury. See, ibid. at 327.

In this case, only the conclusory statements of the Claimant have been presented in support of any claim of malpractice. No competent medical evidence was presented, through a treating physician or an expert witness whose opinion was based upon the available medical records, to support the allegation of medical malpractice. There is no medical evidence on any medical issue and thus no proof that accepted standards of care were not met. The fact that the surgeon may have been sorry for "making" his patient undergo a second surgery, if credited, does not establish that somehow the treatment given was below the acceptable standards of care. Claimant does not rebut the showing by Defendant to the effect that there was acceptable treatment, or that any treatment or failure to treat is a proximate cause of the injuries alleged. Based upon Defendant's presentation, and particularly the uncontradicted medical opinion presented, the Defendant is entitled to judgment as a matter of law, as there are no triable issues of fact presented as to the Claimant's allegations of malpractice.

For all of the foregoing reasons Defendant's cross-motion [CM-69495] for summary judgment and for dismissal of the within claim is granted, and Claim Number 109220 is dismissed in its entirety.
Claimant's Motion to Strike Defense
Denied as moot.

February 18, 2005
White Plains, New York

Judge of the Court of Claims

[1]"A fair reading of the defendant's attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted)."